What is a s32 order?

A section 32 order is a way for the Local Court to divert people with intellectual disability out of the criminal justice system and into the human service sector so they can get the assistance they need to live positive and lawful lives. Part 3 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA) (within which section 32 falls) contains all the provisions relevant to summary proceedings before a Magistrate relating to persons with intellectual disability (and other developmental disabilities and mental disorders).

Section 32 provides for the diversion of alleged offenders from the criminal justice system at any time through the course of the proceedings. This includes even before a formal plea is entered. Anyone involved in court proceedings can bring the possibility of diversion under s32 of the MHFPA to the Magistrate's attention for consideration.

A section 32 order is an order that can be made by a Local Court Magistrate in relation to criminal charges being dealt with summarily. The effect of the order is to dismiss the charges either unconditionally or subject to conditions. Conditions usually relate to complying with a treatment plan, which is an outline of various steps to be taken to engage with services and support to address any issues associated with the offending conduct and the disability.

For a Magistrate to make an order under s32 she or he must be satisfied broadly of two things:

Firstly, that the defendant has a developmental disability (or a mental illness or a mental condition for which treatment is available). Intellectual disability falls within the category of developmental disability

Secondly, that it would be more appropriate to deal with the defendant through a s32 order and diversion into treatment and support, than otherwise through the normal criminal law process of pleas, hearings, sentencing and the like. In deciding whether it is more appropriate, the Magistrate needs to balance two competing public interests namely, the public interest in a person convicted of a criminal offence facing the full weight of the law against the public interest in diverting, supporting and treating a person with intellectual disability not to re-offend and thereby protect the community

If a s32 order is made (assuming it is conditional, which almost all are) the Magistrate will dismiss the charges and discharge the defendant subject to conditions, such as he or she must:

comply with their treatment plan (already tendered to the Court)

take prescribed medication

abide by all reasonable directives of medical and support staff

reside in a specified place

Section 32 orders normally last 6 months. If a person breaches any one of the conditions within those 6 months (and it is reported to the Court) then they can be brought back before the court to be tried for the original charges in accordance with the normal process of the law.

What about charges heard in the NSW Children's Court?

What about Commonwealth criminal offences?

There is a provision similar to s 32 for Commonwealth offences. Section 20BQ of the Crimes Act 1914 (Cth) applies to persons with intellectual disability; or have a mental illness within the meaning of the civil law of the State or Territory who are before a court of summary jurisdiction in respect of a federal offence.

There are two significant differences between s20BQ and s32:

under s 20BQ(1)(c) if the charges are dismissed conditionally, the period of the order can be up to 3 years (compared to the 6 month period under s32)

Although not specified in s 20BQ itself, it has been noted in obiter that a s 20BQ application must be made prior to entering a plea because the section should only apply to defendants who are not fit to plead: see Saadat-Talab v Australia Federal Police (2007) 215 FLR 205 at [44]

To whom can s32 apply?

Section 32 applies to a defendant who has a developmental disability, a mental illness or a mental condition for which treatment is available in a mental health facility, but who is not a mentally ill person.

Section 32 might also be applied to people with acquired brain injury. In DPP v El Mawas (2006) 66 NSWLR 93 at 22-23, the court held that an acquired brain injury as a result of an accident fell within the provisions of s32 of the MHFPA.

It is important to note that people with acquired brain injury are not generally eligible for Department of Human Services - Ageing, Disability and Home Care (ADHC) services. However, if a person acquires a brain injury before the age of 18 years, this may be classified as an intellectual disability by ADHC and the person may be eligible for ADHC services. A good starting point to access psychological reports and support services for clients with acquired brain injury is to determine if the client was or is a patient at a brain injury rehabilitation unit located at a pubic hospital.

The MHFPA does not define the term mental illness or developmentally disabled (the terms used in s32). However, mentally ill person is defined in s 3 of the MHFPA to have the same meaning as in the Mental Health Act 2007. Mental condition is defined in s3 of the MHFPA to mean a condition of disability of mind not including either mental illness or developmental disability of mind. The confusion surrounding these definitions (and lack of other definitions) about whom s32 applies was noted by the NSW Law Reform Commission in 1996 and recommendations for law reform were made, although they have not been pursued.

Although not expressly provided in the legislation, the ordinary meaning of developmentally disabled includes intellectual disability. In DPP v El Mawas (2006) 66 NSWLR 93 at 22-23, the court held that an acquired brain injury as a result of an accident fell within the provisions of s32 of the MHFPA.

It is IDRS's view that disorders that fall within the autistic spectrum, such as Aspergers Syndrome, also fall within the definition of developmental disability. In Police v Ryan (Children's Court of NSW at Bidura, 3 February 2005), reported in Children's Law News 2005 CLN 2, Mulroney CM dismissed charges under s32(3)(a) of the MHFPA for a boy with Aspergers Syndrome. Mulroney CM considered the boy to be suffering from a mental condition. While there is some conjecture about this classification of Aspergers Syndrome , in any case, a lawyer will need to obtain an assessment of a client's disability from a suitably qualified practitioner (such as a psychologist).

When can a s32 application be made?

An application under s32 can be made at any time during the proceedings of a summary matter before a Magistrate in the Local Court. Ideally, it should be raised at the outset. It is not necessary for a plea to be sought from the client or entered before a section 32 application is made: see Mackie v Hunt (1989) 10 NSWLR at 134; Perry v Forbes and Anor Supreme Court of NSW BC 9303694; DPP v El Mawas (2006) 66 NSWLR at 74.

While usually a client's lawyer will indicate to the Court that they intend to pursue a s32 application, a Magistrate can, of their own motion, apply the provisions of s32 to a person charged before them.

How does the Magistrate exercise his or her discretion to divert under s32?

The case law gives some guidance as to the exercise of the Magistrate's discretion under section 32:

In determining whether to divert an accused from the criminal justice system under s32, a Magistrate is required to balance the competing public interests of, on one hand the public interests of punishment of an offence and the other hand, the public interest of diverting a mentally disordered offender from the criminal justice system: DPP v El Mawas (2006) 66 NSLWLR 93; DPP v Confos [2004] NSW SC 1159

It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case: DPP v Confos [2004] NSW SC 1159

The weight to be given to various factors relevant to the Magistrate's discretionary judgment will be a matter for the particular Magistrate: DPP v El Mawas (2006) 66 NSLWLR 93

What is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment against the private interest of the defendant in rehabilitation: DPP v Confos [2004] NSW SC 1159

The Magistrate performs a balancing exercise weighing up, on the one hand the purpose of the criminal process and sentencing as per section 3A of the Crimes (Sentencing Procedure) Act 1999 and on the other the purpose of the procedure under section 32. The purposes of sentencing in section 3A include deterrence, community protection, rehabilitation and punishment. The public interest to which section 32 relates lies in diverting the mentally disordered offender from the criminal justice system into a system of treatment, a system which also has as one of it's objectives, the protection of the community. The modes of achieving the objectives differ according to the precise nature and degree of any mental condition and the available treatment: DPP v El Mawas (2006) 66 NSLWLR 93

What are the possible outcomes?

If an application under s32 is successful, there is no conviction recorded against the accused and there is no finding that the charge(s) have been proven. Section 32 of the MHFPA provides that if it appears to the Magistrate that the defendant is developmentally disabled and that, on the facts and other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant under section 32, the Magistrate may do one of the following:

Adjourn the proceedings : s32(2)(a)

Grant the defendant bail: s32(2)(b)

Make any other order: s32(2)(c)

Dismiss the charge and discharge the defendant into the care of a responsible person, unconditionally or with conditions: s32(3)(a)

Dismiss the charge and discharge the defendant on the condition that the defendant attends an assessment of his/her mental condition or treatment or both: s32(3)(b)

Dismiss the charge unconditionally: s32(3)(c)

If a conditional order is made under s32, the defendant may be asked to give an undertaking to comply with the treatment plan. Some Magistrates may ask service providers to agree to notify Community Offender Services (formerly known as Probation and Parole) if the client breaches any of the conditions of the s32 order (see Local Court form Report of Breach of Order, Section 32A Mental Health (Forensic Provisions) Act 1990 for further information). Where a Magistrate is alerted to a breach, the Magistrate then has discretion as to whether a warrant is issued in relation to the charges the subject of the s32 order. Alternatively, the Magistrate can direct that no action be taken and delete treatment conditions or direct that no action be taken but that the treatment will continue.

What is the period of an order made under s32?

If a Magistrate makes an order dismissing the charge under s32(3), the matter may be brought back before a Magistrate for breaches of a conditional discharge during the 6 month period after making the order: s32 (3A)-(3D) MHCP Act: see El Mawas v DPP [2006] NSWSC 2 at [26] and Mantell v Molyneux (2006) 165 A Crim R 83 at [42].

However, the Magistrate can also take action under s32(2) adjourning the proceeding, granting bail with or without conditions or making any other order that the Magistrate considers appropriate: Mantell v Molyneux (2006) 165 A Crim R 83 at [42], [43]. Taking this action may prolong the process beyond 6 months.

Services provided: Provides support and services to more than 1 million older people, people with disabilities and their carers in NSW. ADHC has specialist forensic services for people with intellectual disability involved, or at risk of becoming involved, in the criminal justice system.

Services provided: Peak body representing the rights and interests of people with intellectual disability in NSW.
ASK CID service - Provides an information services specific to people with intellectual disability in a variety of formats.
CID also provides systemic advocacy- lobbies governments on issues relating to accommodation, health, employment and criminal justice for people with intellectual disability.

Services provided: Provides services including rights-related information, advice and referral services and short-term individual and group advocacy assistance for people with disability, including intellectual disability, and their associates.

Brain Injury Association of NSW

Services provided: Provides support and guidance to people with an Acquired Brain Injury (ABI) in a number of ways including advocacy, information and referral service self-help support groups, and fact sheets in a number of languages other than English.

Mental Health Information Service

Services provided: An anonymous and free telephone and email Information hotline during business hours. Qualified staff assist by tapping into a specialised database to help locate appropriate services, such as treatment, support and advocacy